Ali Shahzad alias Shan Ali Vs The State etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Crl. Misc. No. 43416-B of 2026

Ali Shahzad alias Shan Ali Versus The State etc.

Sr. No. of order/ Date of Order with signature of Judge, and that of parties or counsel, where Proceeding order/ necessary.

Proceeding 31.08.2026 Malik Ali Ahmad Noul, Advocate for the petitioner. Hafiz Asghar Ali, DPG with Afzal, SI for the State. Syed Qalb Abbas, Advocate for the complainant.

Through the instant petition under section 497, Cr.P.C., the petitioner, Ali Shahzad alias Shan Ali, seeks post- arrest bail in case FIR No.135 of 2025, dated 25.02.2025, registered under Sections 324, 148 and 149, PPC, at Police Station Syed Wala, District Nankana Sahib.

2.The Complainant has alleged that the Petitioner, while armed with a pistol, fired at Farooq Ahmad, son of the complainant, which allegedly struck the latter on the left side of his chest.

3.Learned counsel for the petitioner submits that the petitioner has been arrested since 03.03.2025. The challan was submitted before the learned Trial Court after significant delay, whereas the charge was framed only on 02.03.2026. The petitioner contends that the prosecution has failed to conclude the trial within the statutory period despite the petitioner’s continuous imprisonment and that the delay is not attributable to any act or omission on his part. Learned counsel, therefore, prays that the petitioner be released on bail on the statutory ground of delay in conclusion of the trial.

4.Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant, while disputing the petition, submits that the petitioner is specifically nominated in the FIR with a direct role of causing a firearm injury to the injured witness. He further submits that the

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prosecution witnesses were produced before the learned Trial Court but could not be examined or cross-examined due to the conduct of the defence. It is, therefore, maintained that the petitioner is unable to claim the benefit of a delay which he himself contributed to.

5.Arguments heard. Available record, including the report furnished by the learned Trial Court, has been examined with the able assistance of learned counsel for the parties.

6.The petitioner seeks post-arrest bail on the ground of statutory delay under the third proviso to Section 497(1), Cr.P.C. The history of the earlier bail proceedings has also been taken into account. The first post-arrest bail petition, bearing Crl. Misc. No.47874-B of 2025, was dismissed for non-prosecution on 08.09.2025. The second petition, bearing Crl. Misc. No.52358-B of 2025, was dismissed on merits on 29.09.2025. Another petition for the same relief, bearing Crl. Misc. No.42342-B of 2026, was not pressed and was disposed of accordingly on 10.07.2026. The applications moved before the courts below on the statutory ground were also dismissed.

7.It is a settled principle that a successive bail petition is maintainable only upon the availability of a fresh ground. This principle is elaborately enunciated in “Muhammad Usman v. The State and another” (2024 SCMR 28), relevant extract of which is reproduced as under:- "It is settled law that a second bail petition repeating the same grounds that were earlier taken is not competent. Moreover, the grounds raised by an accused in a subsequent bail application which were available at the time of filing of the earlier petition could also not be treated as fresh grounds nor urged for the purposes of seeking the same relief. This Court has already highlighted the principles regarding maintainability of a subsequent bail petition. If the ground on which bail has been sought subsists when a bail petition is withdrawn then such a ground can also not be taken again. However, the exception to this rule is in the case of entitlement of bail on statutory grounds as has been held by this Court. If any act or omission of the accused has hindered the conclusion of trial within the period specified in the third proviso of section 497(1) of the Code of Criminal Procedure, 1898 (Cr.P.C.) then a right, as contemplated thereunder, will not accrue in the latter's favour and, therefore, he or she, as the case may be, would not become entitled to be released on bail on the statutory ground of delay in conclusion of the trial. Nonetheless, if after the rejection of the plea of bail on

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statutory grounds, the accused has subsequently corrected himself/herself and has abstained from doing any act or omission in the following period specified under the third proviso, then a fresh ground would accrue to the accused to invoke the jurisdiction of the court for grant of bail. The third proviso to section 497(1) of Cr.P.C. would thus become operative as and when the period specified therein has expired but the trial has not concluded without any fault on part of the accused".

In the present case, the petition is competent because a fresh ground of delay in conclusion of trial had become available to the petitioner.

8.The third proviso to Section 497(1), Cr.P.C. reads as under:

"497(1). When bail may be taken in cases of non-bailable offence.— 3rd Proviso:- Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail

(a)who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year, or in case of a woman exceeding six months, and whose trial for such offence has not concluded; or

(b)who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years, and in case of a woman exceeding one year, and whose trial for such offence has not concluded:

Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."

Under the third proviso to section 497(1), Cr.P.C., an accused facing an offence not punishable with death becomes entitled to the concession of bail where he has remained in continuous detention for a period exceeding one year and the trial has not concluded, unless the delay has been occasioned by an act or omission attributable to the accused or his counsel. The benefit may also be withheld where the accused falls within any of the statutory exceptions prescribed therein. The Hon'ble Supreme Court, in Muhammad Usman case (supra), has

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authoritatively held that the right recognized under the third proviso to Section 497(1), Cr.P.C. cannot be denied merely on the basis of discretionary powers of the Court. "It has been held by this Court that the right recognized under the third proviso of section 497(1) Cr.P.C. cannot be denied to an accused on the basis of discretionary powers of the court to grant bail. The right has not been left to the discretion of the court, rather, its accrual is subject to the fulfillment of the conditions mentioned under the third proviso of section 497(1) Cr.P.C."

9.The statutory scheme has to be read alongside Section 173, Cr.P.C., which casts an obligation upon the investigating agency to complete the investigation without unnecessary delay and to submit the police report/challan in accordance with law. The prosecution cannot first allow the investigation to remain incomplete beyond the prescribed period and thereafter seek to rely upon the resulting delay against the accused. In “Hakim Mumtaz Ahmad and another v. The State” (PLD 2002 SC 590), the Hon'ble Supreme Court took serious notice of delay in submission of challan and emphasized the duty of the Investigating Officer to complete the investigation within the prescribed period and furnish justification where the challan has not been submitted.

"It is not only this case in which it has been noticed that the Investigating Agency as well as District Attorneys have failed to submit challan of the case registered against accused within the stipulated period but in majority of the case the police report/challan under section 173, Cr.P.C. is not filed despite expiry of stipulated period due to which accused persons involved in criminal case remain languishing in custody without trial.............."

10.In the present case, the record shows that the challan was not submitted within the period as provided by Section 173, Cr.P.C. The FIR was lodged on 25.02.2025, the accused was arrested on 03.03.2025, whereas the report under Section 173, Cr.P.C. was submitted on 13.11.2025, resulting in a delay of approximately eight months and ten days from the date of arrest. Nothing has been brought on record to establish that the petitioner either caused or contributed to such delay. The lapse,

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therefore, was on the part of the investigating/prosecuting machinery and cannot be converted into a ground for depriving the petitioner of the statutory protection available under Section 497(1), Cr.P.C.

11.The matter, however, does not end with submission of the challan. The subsequent period during which the trial remained inconclusive must also be examined to determine whether any part thereof is legally attributable to the petitioner. In Muhammad Usman (supra), the Hon'ble Supreme Court further held that, "While ascertaining the delay, the cumulative effect in disposal of the case has to be considered and its assessment cannot be determined on the basis of mathematical calculations by excluding those dates for which adjournments had been sought by the accused or the latter's counsel. The main factor for consideration is the attendance of the witnesses and whether, despite the matter having become ripe for the recording of evidence, whether the delay was caused by the defence. The recording of the statement of a last witness would also not defeat the right recognized under the third proviso and it would be unreasonable to conclude that the trial has been completed."

The principal consideration is whether the matter had become ripe for recording of evidence and whether the delay was actually caused by the defence. The same principle is equally reflected in “Haq Nawaz v. The State and another” (2025 YLR 673), wherein, while relying upon Muhammad Usman (supra), “Shakeel Shah v. The State and others” (2022 SCMR 1), “Nadeem Samson v. The State and others” (PLD 2022 SC 112) and “Rohan Ahmad v. The State and others” (PLD 2024 SC 492), the Court reiterated that the prosecution must establish that the accused intentionally prolonged the trial through unjustified adjournments or other conduct having the effect of delaying the proceedings.

12.A bare perusal of the report furnished by the learned Trial Court reveals that, after framing of the charge, prosecution witnesses were present on certain dates, yet their evidence could not be recorded or completed on account of the absence or non- availability of defence counsel. However, such circumstance,

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without a corresponding finding as to the actual effect of those adjournments on the progress of the trial, cannot ipso facto render the entire period attributable to the petitioner. The relevant consideration is whether, on the dates sought to be counted against him, the prosecution witnesses were available and ready to depose, the prosecution was prepared to examine them, and the recording of their evidence was nevertheless frustrated by a specific and unjustifiable act or omission of the petitioner or a person acting on his behalf. In the present case, admittedly, no evidence of any prosecution witness was actually recorded during the period in question. The order sheets do not disclose any specific instance where a prosecution witness, being present and ready, could not be examined solely because of a deliberate or unjustified act of the petitioner. The prosecution was required not merely to produce its witnesses before the Court but to demonstrate that their evidence was ripe for recording and that the petitioner was responsible for its non- recording. The mandate of Muhammad Usman case (supra) equally requires the Court to assess the cumulative effect of the proceedings and the actual impact of the alleged adjournments, rather than mechanically treating every date on which the defence sought an adjournment as delay attributable to the accused.

13.The impact of returning unrecorded prosecution witnesses on a bail application based on statutory delay (Section 497, Cr.P.C.) is significant, particularly when the Trial Court fails to record a speaking order. Under Pakistani jurisprudence, the right to an expeditious trial is fundamental, and any delay not directly attributable to the accused such as the court's failure to record present witnesses operates in favor of the accused for the purposes of statutory bail. Section 344 Cr.P.C relates to the adjournment of proceedings in criminal cases, which is reproduced herein for ready reference:

"344. Power to postpone or adjourn proceedings. (1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or

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adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody..."

Under Section 344, Cr.P.C., a Trial Court is mandated to record reasons in writing for any adjournment. If prosecution witnesses (PWs) are present but returned without being examined, and the Trial Court fails to provide a "speaking order" justifying this delay, such periods are generally not excluded from the calculation of the statutory period for bail. Such omissions by the court or the prosecution are not considered "acts or omissions of the accused" under the third proviso to Section 497(1), Cr.P.C.

Similarly, the Rules & Orders of Lahore High Court (Vol. III, Chapter I, Part-A) Rule 4:

"4. Speedy disposal of cases.- Magistrates shall give priority to criminal cases when an accused person is in custody. A criminal case shall be proceeded with from day to day as far as practicable and disposed of quickly. Witnesses, who are present, should be examined promptly and shall not be detained longer than may be absolutely necessary. Adjournments, when necessary, shall be as short as the circumstances permit."

Part-E, Rule-14 of the Chapter 1 speaks in following words:- “14. Record to contain a brief note of all material orders passed.-Each record or memorandum of evidence should be dated and the record of a case made by a Magistrate or Sessions Judge should not only contain depositions or memoranda of evidence, according as the evidence is or is not recorded by him in full, but also, in its proper place, a short note of every material order made during the inquiry or trial, with the date on which such order was made. Every order of adjournment must be entered, and the date on which the inquiry was resumed should be apparent.

Notes- Orders to be written by the Magistrate in his own hand.- All notes and orders recorded by Presiding Officer (e.g., orders of adjournment, notes regarding the presence of witnesses) other than depositions, orders deciding any matter in dispute and the final judgment, should be written by the Presiding Officer in his own handwriting or dictated by him and be dated and appended to the record. Each "order" or "note" should be clearly marked as such."

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Chapter-11, Part-B, Rule 10 makes a distinction between police remand and judicial remand and that too requires recording of reasons for adjournment to judicial remand:- "10. Procedure when a remand for more than 15 days is required for completion of the case.- If the limit of 15 days has elapsed, and there is still need for further investigation by the Police, the procedure to be adopted is that laid down in section 344, Criminal Procedure Code. The case is brought on to the Magistrate's file and the accused, if detention is necessary, will remain in magisterial custody. The case may be postponed or adjourned from time to time for periods of not more than 15 days each, and as each adjournment expires the accused must be produced before the Magistrate, and the order of adjournment must show good reasons for making the order."

Chapter 24, Part-B, Rule-2 also requires the recording of reasons for adjournment in Sessions trial other than day to day.

"2. Reservation of several days for possible Sessions cases.- The trial of a Sessions case shall, as a rule, be held from day to day and unless there be compelling reasons for adjournment, there should be no adjournment."

14.The Hon'ble Superior courts have clarified the consequences of unreasoned adjournments and the return of present witnesses in following ways:- The august Supreme Court of Pakistan in “ABDUR RASHID V. THE STATE” (1998 SCMR 897) held for the right of accused to bail in case of any slackness or incapacity of prosecution to conclude trial within the time frame mentioned in clauses (a) & (b) of section 497 CrPC . However, if the delay occasioned is due to any act or omission on the part of the accused, it may cause exception to the said general rule. The apex court ruled as: "Any slackness or incapacity of prosecution to conclude the prosecution side within the time frame mentioned in clauses (a) and (b), supra, will provide all advantage to the accused for being released on bail. However, exception contained in third proviso unambiguously imposes a responsibility upon the accused for ensuring that delay in disposal is not occasioned or caused on account of him or any person acting on his behalf. Therefore, it is crystal clear that if for any reason accused or his authorized agent which necessarily includes the advocate engaged for defence causes delay, then in such eventuality protection contained in the third proviso cannot be invoked. It may further be noticed that while ascertaining cumulative effect of ultimate delay in disposal of the case, it would not be merely

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mathematical calculation of excluding such days for which adjournment was obtained by the accused or his counsel."

15.The circumstances of the present case become even more significant when it is noticed that the charge was framed almost one year after the petitioner's arrest, whereas the substantial period preceding the framing of charge has neither been explained by the prosecution nor attributed, through any specific act or omission, to the petitioner. A careful examination of the order sheets, particularly the proceedings after framing of charge, further belies the assertion that the delay in conclusion of the trial was attributable to the petitioner. On several dates, the complete prosecution evidence was not available and adjournments were sought from the complainant/prosecution side for producing the complete evidence. On one occasion, even the learned Presiding Officer was not available. Conversely, the record reflects that adjournment was sought on behalf of the accused only on two occasions. Thus, the order sheets, when examined cumulatively and in their true perspective, do not demonstrate that the petitioner or anyone acting on his behalf repeatedly or deliberately obstructed the recording of prosecution evidence. Rather, the record indicates that on several dates the prosecution itself was not in a position to proceed with its complete evidence. The subsequent report of the learned Magistrate merely records, in general terms, that the delay in conclusion of the trial was attributable to the accused, but identifies neither the particular dates nor the proceedings nor any specific conduct of the petitioner which occasioned such delay. Such conclusion is not borne out by the contemporaneous order sheets. The statutory exception contemplated by the third proviso to Section 497(1), Cr.P.C. cannot be invoked on the basis of a generalized assertion of attribution; the alleged delay must be demonstrably traceable to an act or omission of the accused or a person acting on his behalf. Had the record shown that, despite the presence and readiness of a prosecution witness and the prosecution's preparedness to examine him, the

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petitioner had deliberately and without justification prevented the recording of his evidence, or had failed to cross-examine after his examination-in-chief was recorded despite adequate opportunity, the period so occasioned could legitimately have been taken into account. That is not the case here. In the absence of any such specific finding or supporting material in the order sheets, the petitioner cannot be saddled with responsibility for a period during which the prosecution evidence was, in fact, not recorded. The statutory right available under the third proviso to Section 497(1), Cr.P.C. thus cannot be defeated merely on the strength of an unsupported conclusion that the delay was attributable to the petitioner.

16.It is equally substantial that the prosecution has not asserted that the petitioner is a previous convict, a hardened or desperate criminal, or that he poses a serious threat and danger to the community if released on bail. Nothing has been placed on record to bring his case within any of the exceptions contemplated by the third proviso to Section 497(1), Cr.P.C. The principles laid down in “Noor Agha v. The State and another” (2025 SCMR 1679) and “Adnan Shafai v. The State and another” (2024 SCMR 1543) may also be relied upon in this context.

17.The right to a fair and expeditious trial is an essential component of due process. Pre-trial detention cannot be permitted to assume the character of punishment, particularly where the accused has remained incarcerated beyond the statutory period and the trial is not likely to conclude in the immediate future. The prosecution's allegations may be grave, but the gravity of an accusation, by itself, is unable to defeat a statutory entitlement where the prescribed conditions stand satisfied.

18.In the present case, the delay in submission of the challan is attributable to the prosecution. No material has been brought on record showing that the petitioner caused or contributed to that delay. As regards the subsequent period, the

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report of the learned Magistrate does not identify any particular act or omission of the petitioner which materially obstructed the progress of the trial. The order sheets likewise do not disclose that, on the dates relied upon, the prosecution was ready to record its evidence and the petitioner deliberately prevented such recording. The mere presence of prosecution witnesses in Court, without recording of their evidence and without a specific order-sheet explanation as to why such evidence could not be recorded, is insufficient to deprive the petitioner of his statutory right.

19.Consequently, without commenting upon the merits of the case, lest it prejudice either party during the trial, the instant petition is allowed. The petitioner, Ali Shahzad alias Shan Ali, is admitted to post-arrest bail, subject to furnishing bail bonds in the sum of Rs. 1,00,000/- (one lac) with one surety in the like amount to the satisfaction of the learned Trial Court.

20.The observations recorded herein are tentative in nature and shall not influence the learned Trial Court, which shall decide the case strictly on the basis of the evidence produced before it.

(GHULAM SARWAR NIHUNG)

JUDGE

Announced, dictated, prepared and signed on 31.08.2026.

Approved for reporting.

JUDGE

Iftikhar